Banks v. State

• Decision Date: 15 July 1976
• Docket Number: No. 1074S204,1074S204
• Citation: 351 N.E.2d 4,265 Ind. 71
• Parties: Walter BANKS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 4

351 N.E.2d 4

265 Ind. 71

Walter BANKS, Appellant, v. STATE of Indiana, Appellee.

No. 1074S204.

Supreme Court of Indiana.

July 15, 1976.

Rehearing Denied Sept. 9, 1976.

John O. Moss, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Walter Banks, was convicted on December 30, 1973, of first degree murder, homicide in the perpetration of a burglary. Sentenced to life imprisonment on February 13, 1974, the Appellant filed his Motion to Correct Errors on April 15, 1974. It is from the overruling of this motion on July 18, 1974, that the Appellant now appeals.

One of the Appellant's confederates, Larry Cade, was tried separately and was convicted of first degree murder on April 10, 1974. This court affirmed that conviction on June 4, 1976. Cade v. State, (1976) Ind., 348 N.E.2d 394.

The evidence at trial revealed that on the evening of January 5, 1973, Mr. George Hosmer, age 79, and his wife Lucille, age 78, returned to their home on North Delaware Avenue in Indianapolis. They had been visiting a neighbor, Mrs. Forney, wife of the late Judge Forney. As the Hosmers entered the house, a man ran across the dining room and into the kitchen, toward the rear of the house. Mrs. Hosmer went to the nearby phone while Mr. Hosmer, thinking he had heard something outside, stepped out the front door. Shots rang out from the upstairs of the house. Mr. Hosmer was struck in a rib by a bullet. Mrs. Hosmer was shot and killed.

Mr. Hosmer was able to make it to his neighbor's home, from which police were called. Police arriving on the scene discovered that the back door of the house had been forced and entered. Various items believed to be the objects of an attempted burglary were found at the back steps of the house. Latent fingerprints found at the scene of the crime included prints later identified as those of the Appellant. Bullets taken from the body of the deceased and the home were found to have been fired from the same .25 caliber weapon.

The Appellant was arrested at his home in the early morning hours of January 7, 1973. After his arrest, the Appellant admitted attempting to burglarize the Hosmer residence, admitted shooting Mr. and Mrs. Hosmer, and said he had thrown the murder weapon, a .25 caliber automatic, into Fall Creek. The admissibility of these statements is challenged in this appeal.

Daniel Bridgewater, an acquaintance of the Appellant, testified that on the evening of January 5, the Appellant told him he had shot 'some old lady and some old man.' The next day, Bridgewater accompanied the Appellant to Fall Creek, where the Appellant's brother tossed something into the water. When asked if the Appellant told him what was tossed in the creek Bridgewater replied, 'He mentioned a gun.'

I.

The Appellant's first allegations of error concern the admission into evidence of testimony relating a confession given by the Appellant to police after his arrest. This statement was originally tape recorded by police, but this recording was found by the trial court to be too inaudible to be admitted. Instead, a police officer testified as to waht was said. (The Appellant also draws our attention to the admission into evidence of a waiver of rights form signed by the Appellant as if the form, by itself, is prejudicial to the Appellant. Because that form is significant only as evidence regarding the admissibility of subsequent statements, we will not discuss it separately.)

The first contention regarding the confession is that it was coerced and improperly induced by police. The Appellant asserts that he was awakened and arrested near midnight and was subjected to a 'continuous interrogation' which 'covered a period of hours.' It is also asserted that the Appellant was induced to confess by police promises that cooperation would result in a reduced sentence of '2--21 years.'

Three separate hearings were conducted regarding the admissibility of the Appellant's confession. Those hearings revealed that the Appellant was not arrested at midnight, but at about 4:00 a.m., January 7, 1973. Police interrogation of the Appellant ceased at about 5:00 a.m. after police obtained the confession. Police officers testified that while a sentence of '2--21 years' was mentioned, it was in the context of a discussion of the crime of first degree murder, its punishment, and the sentences which attach to all the lesser included offenses of that crime. They testified further that no promises were made. There is no evidence of threats by police. The Appellant was properly advised of his Miranda rights when he was arrested and during his interrogation.

This court will not ordinarily overturn a trial court's determination as to the admissibility of a confession when that determination is based on conflicting evidence. Cooper v. State, (1974) 261 Ind. 659, 309 N.E.2d 807. This is the situation we confront in these allegations of coercion and inducements.

It is also asserted that the Appellant's waiver of rights and subsequent confession were not knowingly, voluntarily and intelligently made because he was not permitted to have his parents with him in the interrogation room. In support of this proposition the Appellant cites Hall v. State, (1976) Ind., 346 N.E.2d 584, in which this court reasserted the principle that a juvenile is entitled to an opportunity to consult with his or her parent, guardian, or attorney as to whether or not he wishes to waive his or her rights. The Appellant, however, was eighteen years old. He was not a 'delinquent child' subject to the jurisdiction of our juvenile courts. Ind.Code § 31--5--7--4.1 (Burns Supp.1975). He was not a juvenile within the contemplation of Hall v. State, supra. He was not an individual of such 'tender years' that an intelligent, knowing and voluntary waiver of rights could not be made in the absence of his parents.

The Appellant next contends that his arrest was illegal because it was made without a warrant and without probable cause. Under such circumstances, the subsequent confession would be the fruit of unlawful police conduct and would not be admissible into evidence. Wong Sun v. United States, (1963)371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This contention, however, is not supported by the facts.

The trial court specifically found that there was probable cause to arrest the Appellant. We agree. Testimony at the various supression hearings in this case revealed that police spoke with an informant at approximately 5:00 p.m. on January 6, 1973. This informant named the Appellant as one of three perpetrators of the crime. Also named were Enos Adams and Larry Cade. (There is some confusion as to whether Larry Cade was named by the informant. The Appellant and Adams were certainly identified.) Police were able to locate Adams at his home at about 1:00 a.m. on January 7.

Adams, a juvenile, went to the police station with investigating officers and gave a confession to police which implicated himself, the Appellant and Cade in the shooting. Police thus had information from two informants, one of whom was an eyewitness, upo which their arrest of the Appellant was based. ' Probable cause justifying an arrest without a warrant exists where facts and circumstances within the arresting officer's knowledge or of which he had reasonably trustworthy information, would lead a reasonably prudent person under the conditions at the time to believe a crime had been committed.' Manson v. State, (1967) 249 Ind. 53 at 56, 229 N.E.2d 801 at 803. The facts then known to police officers gave them probable cause to believe that the Appellant had committed the crime in question.

Even given this probable cause, however, we must still examine the circumstances surrounding the Appellant's warrantless arrest. 'The United States Constitution provides that arrests and seizures shall be made under authority of a warrant. However, a warrant is not required where probable cause for an arrest exists and exigent circumstances made the procuring of a warrant impracticable. Stuck v. State, (1970) 255 Ind. 350, 264 N.E.2d 611.' Finch v. State, (1975) Ind., 338 N.E.2d 629 at 631. Such exigent circumstances existed in this case. Police secured the statement of Adams at about 1:30 on a Sunday morning. The obtaining of a warrant would have necessarily involved substantial delay. It was reasonable to fear that, in the meantime, word would get to the other suspects that Adams had 'gone downtown' with police and that they would flee.

The Appellant also suggests that the issue of voluntariness of a confession would be aided by the tape recording of the preceding rights waiver. This court has held, however, that rights waivers and subsequent confessions need not be recorded through the same medium. While we have acknowledged the simplicity and protection that the tape recording of both a waiver of rights and confession affords, the absence of such a recording will not preclude the admission of the confession into evidence. Layton v. State, (1973) 261 Ind. 251, 301 N.E.2d 633. It is interesting to note that the Appellant does not allege that such a recording was not made in this case. Even if it was not made, it is difficult to perceive the harm to the Appellant. The tape recording of the confession here was held inadmissible on the grounds that it was inaudible. The protection which would be afforded a defendant by an inaudible recording of his waiver of rights is rather illusory.

A similarly curious argument is presented in support of the proposition that the Appellant was denied the right to counsel at his interrogation. It is not asserted that the Appellant at any time requested the presence of counsel and we have found nothing in the record which suggests that such a request was made. Cited in support of the argument is Coyote v. United States, (10th Cir. 1967) 380 F.2d 305, which discusses...